The Supreme Court on Friday stayed the Gujarat high court order nullifying state minister and Bharatiya Janata Party leader Bhupendrasinh Chudasama's 2017 election on the ground of malpractice and manipulation.
Chudasama is currently the minister for law and justice, legislative and parliamentary affairs, education and some other departments in the Vijay Rupani government.
A bench of Justices M Shantanagoudar and R Subhas Reddy, conducting the hearing through video conferencing, issued notice on Chudasama's plea and sought response from his rival Congress candidate Ashwin Rathod, among others.
In the high court, Rathod had challenged his BJP rival's victory from Dholka constituency by a margin of mere 327 votes in the 2017 Gujarat assembly polls.
During the hearing, senior advocate Neeraj Kishan Kaul, appearing for Chudasama, said that election of his client was set aside by the high court on ground of corrupt practice as 429 postal votes was not counted and which were more than the victory margin.
He said the returning officer rejected the postal votes.
Senior advocate Harish Salve, also appearing for Chudasama, joined the arguments after his video link was established and said that one of the fundamental principles is to find out which way were the votes going.
He said the election petition was filed by his rival candidate on presumptions and assumptions as the returning officer did not counted 429 votes.
He contended that the high court should have called for the 429 votes and seen if they were rightly rejected under the law as one has to see, if results were materially affected due to this move.
Salve said there was no link between the minister and the returning officer nor any link or collusion to establish material benefit.
Senior advocate Kapil Sibal, appearing for Rathod, said that complete facts were not presented and there are illegalities and manipulation as counting of votes started with electronic voting machines and postal ballots were not even brought till the final round of counting.
He said there is a form 20 A signed by returning officer, which says 429 postal ballot rejected but returning officer tells poll observer that no ballot was rejected.
Sibal pointed out that Election Commission of India directions are that postal ballots are to be counted if victory margin is less and in this case it was just 327 votes while postal ballots were 429.
He said that there was collusion between the returning officer and the winning candidate as postal ballots were not counted even though the victory margin was less.
The bench said that says returning officer has given reasons for rejecting the postal ballots.
Sibal said that the Election Commission of India's instructions are that you have to recount the votes, if postal ballots are rejected.
“Not a single record to suggest that the votes were rejected,” he said.
The bench then said that it is staying the high court order and issuing notice.
Sibal opposed the stay of the order and said that court should not stay the order in this kind of matter, where the basis is corrupt practice.
The bench told Sibal that court has always stayed orders like this and it has been done in many cases.
The high court had on May 12, nullified 2017 election of Chudasama on the ground of malpractice and manipulation and have also refused to stay of the operation of the order till the disposal of his appeal.
It had held that Returning Officer "illegally rejected" 429 postal ballots during the counting of votes, while the victory margin was only 327.
Chudasama has sought setting aside of the order of the High Court by terming it as erroneous and contended that it has failed to appreciate that his rival Congress candidate has not led positive, reliable and
cogent evidence to prove any of the issues.
Therefore, Rathod was not entitled to be declared as duly elected candidate from '58-Dholakia Constituency' for the Gujarat State Assembly Elections on December 14, 2017, the minister submitted.
“That the high court has failed to appreciate the proper facts of the case and has reached a completely erroneous conclusion in holding the successful election of the Petitioner as illegal and void,” his plea said.
It said that high court order was erroneous as it answers in affirmative that Rathod has proven that 429 postal ballot papers were illegally rejected at the time of counting of votes and appellant's (Chudasama) election from Dholka constituency was materially affected by improper rejection of the votes.
“Because the high court failed to appreciate that so far as illegal rejection of 429 postal ballots is concerned, Rule 54-A of the Conduct of Election Rules, 1961 clearly draws a distinction between postal ballot and vote, i.e. when a postal ballot culminates into a vote,” the plea said.
